HB 1679-FN – FINAL VERSION
HOUSE BILL 1679-FN
AN ACT relative to partial-birth abortion.
This bill establishes the partial-birth abortion ban act.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to partial-birth abortion.
Be it Enacted by the Senate and House of Representatives in General Court convened:
I. The general court of the state of New Hampshire finds that:
(a) In 2003, the 108th United States Congress passed the “Partial-Birth Abortion Ban Act of 2003” (18 U.S.C. section 1531) and President George W. Bush signed it into law.
(b) Later, on April 18, 2007, the Supreme Court of the United States upheld the “Partial-Birth Abortion Ban Act of 2003” (“the federal ban”) in Gonzales v. Carhart, 550 U.S. 124 (2007), specifically ruling that a ban on partial-birth abortion need not include a maternal “health” exception to be constitutional.
II. In recognition of the federal act and the Supreme Court decision, the New Hampshire general court hereby establishes the partial-birth abortion ban act.
283:2 New Subdivision; Partial-Birth Abortion Ban Act. Amend RSA 329 by inserting after section 31 the following new subdivision:
329:32 Title. This act may be known and cited as the “Partial-Birth Abortion Ban Act.”
329:33 Definitions. In this subdivision:
I. “Department” means the department of health and human services.
II. “Medical facility” means any licensed public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician’s office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein medical care is provided to any person.
III. “Partial-birth abortion” means an abortion in which the person performing the abortion:
(a) Deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
(b) Performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.
IV. “Physician” means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery licensed by the state in which the doctor performs such activity, or any other individual legally authorized by the state to perform abortions; provided, however, that any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this subdivision.
329:34 Prohibition; Limitations.
I. A person shall not knowingly perform or attempt to perform a partial-birth abortion.
II. No person shall perform or induce a partial-birth abortion on a viable fetus unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion and both physicians determine that the life of the mother is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
I. If a physician determines in accordance with the provisions of RSA 329:34, II that a partial-birth abortion is necessary and performs a partial-birth abortion on the woman, the physician shall report such determination and the reasons for such determination in writing to the medical facility in which the abortion is performed for inclusion in the report of the medical facility to the department; or if the abortion is not performed in a medical facility, the physician shall report the reasons for such determination in writing to the department as part of the written report made by the physician to the department. The physician shall retain a copy of the written reports required under this section for not less than 5 years.
II. Failure to report under this section shall not subject the physician to criminal or civil penalties under RSA 329:36 and 329:37.
III. Paragraph II shall not preclude sanctions, disciplinary action, or any other appropriate action by the board.
329:36 Criminal Penalties.
I. In addition to other penalties under this chapter, any person who intentionally or knowingly violates this subdivision shall be guilty of a class B felony.
II. Any physician who intentionally or knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined not less than $10,000 nor more than $100,000 under this subdivision, or be imprisoned not less than one year nor more than 10 years, or both.
329:37 Civil Penalties.
I. The father, if married to the mother at the time she receives a partial-birth abortion procedure, and, if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.
II. Such relief shall include:
(a) Money damages for all injuries, psychological and physical, occasioned by the violation of this subdivision; and
(b) Statutory damages equal to 3 times the cost of the partial-birth abortion.
329:38 Review by Board.
I. A physician-defendant accused of an offense under this subdivision may seek a hearing before the board as to whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
II. The findings on this issue are admissible on this issue at the civil and criminal trials of the physician-defendant. Upon a motion of the physician-defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.
329:39 Penalties for Ambulatory Health Care Facilities.
I. An ambulatory health care facility licensed pursuant to RSA 151 in which the partial-birth abortion is performed in violation of this subdivision shall be subject to immediate revocation of its license by the department.
II. An ambulatory health care facility licensed pursuant to RSA 151 in which the partial-birth abortion is performed in violation of this subdivision shall lose all state funding for 3 years and shall be required to reimburse the state for funds from the fiscal year in which the partial-birth abortion was performed.
329:40 Prosecutorial Exclusion. A woman upon whom a partial-birth abortion is performed may not be prosecuted under this subdivision for a conspiracy to violate RSA 329:34.
I. Nothing in this subdivision shall be construed as creating or recognizing a right to abortion.
II. It is not the intention of this subdivision to make lawful an abortion that is currently unlawful.
329:42 Severability. If any provision of this subdivision or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the subdivision which can be given effect without the invalid provision or application, and to this end the provisions of this subdivision are declared to be severable.
283:3 Effective Date. This act shall take effect January 1, 2013.
Approved: Enacted in accordance with Article 44, Part II, N.H. Constitution, without signature of the governor, June 27, 2012.
Effective Date: January 1, 2013